Opinion
No. 2001-CA-001354-WC.
September 27, 2002.
Petition for Review of a Decision of the Workers' Compensation Board Action No. WC-99-97262.
John C. Morton, Rebecca L. Briggs, Henderson, KY, Brief for Appellant.
Thomas M. Rhoads, Madisonville, KY, Brief for Appellee, Terry Stogner.
Before: GUDGEL, JOHNSON and McANULTY, Judges.
OPINION
Perdue Farms, Inc., has petitioned for review of an opinion entered by the Workers' Compensation Board on May 23, 2001, which affirmed the opinion, order and award of the Administrative Law Judge (ALJ) awarding Terry Stogner temporary total disability benefits, permanent partial disability benefits, and medical expenses. Having concluded that the evidence did not compel a finding by the ALJ that Stogner's claim was barred by KRS 342.610(3) because his injury was proximately caused primarily by his voluntary intoxication, we affirm.
Kentucky Revised Statutes.
Stogner was employed by Perdue Farms at its chicken processing plant in Beaver Dam, Kentucky. On December 23 and 24, 1998, Stogner was scheduled to work a double shift in the sanitation department. Stogner worked his first shift from 10:00 p.m. on December 23 to approximately 8:30 a.m. on December 24; his second shift began at noon on December 24. Between the end of Stogner's first shift and the beginning of his second shift, Stogner and two co-workers, Lonnie Eversole and Robert Farley, left the facility. After leaving Eversole at his home, Stogner and Farley drove to Owensboro, where Stogner purchased two cases of beer. The two men then drove to the home of a friend, where Stogner admitted to drinking one glass of wine. Shortly thereafter, Stogner and Farley drove to Beaver Dam, picked-up Eversole, and returned to work. The three men arrived back at Perdue Farms at around 11:30 a.m. and Stogner clocked in at just before noon.
Within the first 20 to 30 minutes of his shift, Stogner reported the malfunctioning of a machine to Lonnie Patton, a maintenance employee. While Stogner was explaining the problem to Patton, Stogner pointed at the machine with his hand. Unfortunately, Stogner's latex glove got caught in the machine and his left hand was pulled into the machine. While Stogner was able to quickly remove his hand from the machine, he still suffered severe injuries to his left hand and arm.
The machine is known as an "auto rehanger." It is used in the Evisceration Department to transfer chicken carcasses from one cleaning line to another.
Stogner was immediately rushed to the emergency room of the Ohio County Hospital. Stogner was treated by Dr. Donald Gregory, who testified that he smelled alcohol on Stogner's breath. The blood alcohol test ordered by Dr. Gregory revealed a blood alcohol concentration of .15, well above the legal limit of intoxication.
Dr. Gregory testified that Stogner stated that he had drunk two beers earlier that day.
On December 24, 1998, the alcohol concentration legal limit was .10. On October 1, 2000, it was lowered to .08. See KRS 189A.010.
At the hearing before the ALJ, one of the contested issues was whether Stogner's claim for workers' compensation benefits was barred by KRS 342.610(3), which provides in pertinent part that "[l]iability for compensation shall not apply where injury . . . to the employee was proximately caused primarily by voluntary intoxication . . . ." While the ALJ found that Stogner's judgment had been impaired by alcohol on the day of his accident, he also found that Stogner's injury was not proximately caused primarily by his voluntary intoxication. Based on this finding, the ALJ ruled that Stogner's claim was not barred by KRS 342.610(3). The ALJ awarded Stogner temporary total disability benefits, permanent partial disability benefits for a period of 425 weeks, and all reasonable medical expenses. On May 23, 2001, the Workers' Compensation Board affirmed the award of the ALJ. This petition for review followed.
Perdue Farms argues before this Court, as it did before the Board, one primary issue; but, once again, it argues the primary issue by presenting three secondary issues: (1) "whether the ALJ erred in failing to consider the public policy behind the Worker's [sic] Compensation Act"; (2) "whether the ALJ's rejection of uncontradicted medical evidence that appellee's injury was proximately caused primarily by intoxication was arbitrary and capricious"; and (3) "whether the ALJ erred in failing to make an adequate finding to support a conclusion that appellee's employment was the proximate cause of his injury". The issue before this Court can be summarized as whether the Board has "committed an error in assessing the evidence so flagrant as to cause gross injustice" by not ruling that the evidence compelled a finding by the ALJ that Stogner's claim was barred by KRS 342.610(3) because his injury was proximately caused primarily by his voluntary intoxication. In assessing the evidence before the ALJ, the Board was required to determine "whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [Perdue Farms'] favor." In reviewing the Board's appellate decision, this Court is required to give the Board the same deference that we are afforded when our Supreme Court exercises discretionary review of our decisions in cases that originated in circuit court.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 688 (1992).
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736 (1984).
Western Baptist Hospital, supra.
Perdue Farms states in its brief that "the Board and the ALJ failed to consider the public policy of construing the Workers' Compensation Act so as not to condone an employee's choice to work while voluntarily intoxicated." Additionally, Perdue Farms argued in its brief before the Board that "[i]t is simply bad policy to allow a person who is intoxicated at a level of 1-1/2 times the legal limit to recover benefits." Perdue Farms appears to be arguing for the imposition of an absolute bar to an employee receiving workers' compensation benefits if his voluntary intoxication exceeds a certain level. Our Legislature has already established the public policy regarding the voluntary intoxication of a workers' compensation claimant by enacting KRS 342.610(3), which provides:
Liability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his willful intention to injure or kill himself or another.
KRS 501.010(4) states:
"Voluntary intoxication" means intoxication caused by substances which the defendant knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a charge of crime.
Additionally, the former Court of Appeals, in construing the precursor to KRS 342.610(3), held that "if the accident would not have happened but for the intoxication, then it was caused by intoxication" [emphasis added].
Woosley v. Central Uniform Rental, Ky., 463 S.W.2d 345, 347 (1971).
While Perdue Farms is correct in noting that the ALJ did not write philosophically about the origins of the Workers' Compensation Act and the policies giving rise to it, such a discussion was not necessary in deciding Stogner's claim. The ALJ correctly identified the applicable law and made well supported, relevant factual findings. The ALJ then arrived at his decision by applying the law to those factual findings. The key finding made by the ALJ that is relevant to this appeal was his finding that Stogner's injury was not "proximately caused primarily by voluntary intoxication."
For Perdue Farms to prevail on appeal, it must convince this Court that the Board by affirming the ALJ has committed an error in assessing the evidence so flagrant as to cause gross injustice because the evidence in favor of Perdue Farms' affirmative defense was so overwhelming as to compel a finding by the ALJ that Stogner's injury was proximately caused primarily by his voluntary intoxication. Perdue Farms would have the ALJ, the Board, and this Court go beyond the wording of KRS 342.610(3) and rule that public policy requires an absolute bar to the receipt of workers' compensation benefits by Stogner due to his level of voluntary intoxication. Such a ruling would be contrary to the law and would constitute usurpation of the Legislature's authority.
It is fundamental that the ALJ, as the finder of fact, has the sole authority to determine the quality, character, weight, credibility and substance of the evidence, and to draw reasonable inferences from the evidence. The ALJ has "the right to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." For a party with the burden of proof, who was unsuccessful before the ALJ to prevail on review, the party must demonstrate that the evidence was "so overwhelming, upon consideration of the entire record, as to have compelled a finding in his favor." Compelling evidence is evidence "so overwhelming that no reasonable person could reach the conclusion" which is being challenged.
Transportation Cabinet v. Poe, Ky., 69 S.W.3d 60, 62 (2002); Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993).
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16 (1977).
Voluntary intoxication is listed as a special defense in 803 Kentucky Administrative Regulations (KAR) 25:010 § 1(9)(e). Thus, Perdue Farms bore the burden of proving that Stogner's injuries were proximately caused primarily by his voluntary intoxication.
Crum, supra at 736.
REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224, 226 (1985).
We have reviewed the evidence of record, and the evidence did not compel a finding by the ALJ that Stogner's injury was proximately caused primarily by his voluntary intoxication. Three co-workers, including Lonnie Patton, who directly witnessed the accident, testified that Stogner was in full control of his faculties at the time of the accident. The testimony relied upon by Perdue Farms was given by medical personnel who had neither viewed the operation of the machinery nor witnessed the accident. While it is obvious that Stogner used extremely poor judgment by placing his hand so close to the machine, it was within the province of the ALJ, as the fact- finder, to judge the credibility of the witnesses, to weigh the evidence, to draw reasonable inferences from the evidence, and ultimately, to determine whether Stogner's injury was proximately caused primarily by his voluntary intoxication.
The ALJ made the following findings regarding this issue:
In this instance, the Plaintiff testified that he had one glass of wine at 10:00 a.m. prior to his accident; however, Dr. Gregory, the emergency room physician, stated that he smelled something like alcohol on the Plaintiff's breath and testified that the Plaintiff had a blood alcohol content of .15. I am persuaded by the testimony of Dr. Gregory that, whatever the source, the Plaintiff's blood alcohol content at 1:35 p.m. on December 24, 1998, was .15. I am also persuaded by the testimony of Dr. Gregory that the alcohol content was sufficient to cause some degree of impaired judgment. Having made that determination, the remaining portion of the issue is whether the injury was proximately caused primarily by voluntary intoxication.
. . .
In this instance, Mr. Lonnie Patton, who was the maintenance employee, described the incident and testified in his deposition that he agreed with the description of it by Mr. Stogner. At the time of the accident, the Plaintiff had worked from 10:00 p.m. on the night of December 23rd until 8:30 a.m. on the morning of December 24th and then returned to work and began working again at 12:00 noon. He stated that he had not eaten nor did he sleep during the 3-1/2 hours between shifts. In view of the totality of the circumstances in this instance, which included lack of sleep, extended working hours and the testimony by Dr. Gregory that the effect of alcohol upon individuals varies, as well as the testimony of Mr. Eversole and Mr. Farley, who is now a foreman at the facility, concerning their observations of Mr. Stogner, I am not persuaded that the Plaintiff's injury was proximately caused primarily by voluntary intoxication. Having made that determination, the Plaintiff's claim is not barred by the aforementioned statute.
Upon consideration of the entire record, we conclude that the evidence in support of a finding that Stogner's injury was proximately caused primarily by his voluntary intoxication was not so overwhelming as to have compelled a finding by the ALJ in favor of Perdue Farms. Thus, this Court cannot conclude that the Board has committed an error in assessing the evidence so flagrant as to cause gross injustice.
Perdue Farms also claims the ALJ erred by failing to make a sufficient finding of fact concerning Stogner's injury being work-related. In his opinion, the ALJ stated that it was "undisputed" that Stogner's injury occurred as a result of his hand getting caught in the machine. The ALJ further stated that "[t]he Plaintiff's testimony, as well as that of Mr. Patton, the emergency room records from Ohio County Hospital and the testimony of Dr. Gregory convince me that the Plaintiff's injury is an injury as defined by [KRS 342.0011(1)] and is an injury of appreciable proportion." Certainly, these findings are sufficient to meet the requirements of KRS 342.0011(1) which defines injury as "any work-related traumatic event . . . arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings."
For the aforementioned reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR.